Summary
In Smith v. ABC Realty Co. (71 Misc.2d 384, revg. 66 Misc.2d 276, supra), the plaintiff tenant lived on the top floor of a five-story walk-up in a high-crime area. Her bedroom window fronted on a platform of a fire escape which led from the roof to the ground.
Summary of this case from Sherman v. Concourse RealtyOpinion
May 5, 1972
Appeal from the Civil Court of the City of New York, County of New York, MARTIN B. STECHER, J.
Harold M. Foster, William F. McNulty and Anthony J. McNulty for appellant.
Strauss Ferdinand ( David A. Ferdinand of counsel), for respondent.
The defendant's negligence was not the proximate cause of the plaintiff's injuries ( Tirado v. Lubarsky, 49 Misc.2d 543, affd. 52 Misc.2d 527; Levin v. Eleto Realty Corp., 160 Misc. 141; Grant v. Godfrey Nurse Houses, 136 N.Y.S.2d 751; Cardona v. Barbat, 56 N.Y.S.2d 451; Horney v. World Is. Estates, 20 A.D.2d 849, affd. 15 N.Y.2d 564, cert. den. 380 U.S. 987). It has been repeatedly observed that "The act of a party sought to be charged is not to be regarded as a proximate cause unless it is in clear sequence with the result and unless it could have been reasonably anticipated that the consequences complained of would result from the alleged wrongful act" ( Saugerties Bank v. Delaware Hudson Co., 236 N.Y. 425, 430; Dunn v. State of New York, 29 N.Y.2d 313, 318). The circumstances presented in the instant record do not warrant such conclusion.
The judgment should be reversed, with $30 costs and complaint dismissed.
The circumstances leading to plaintiff's injuries shown by her testimony and the police record did not justify a finding that defendant should have reasonably anticipated that the consequences complained of by plaintiff would result from defendant's negligent act ( Dunn v. State of New York, 29 N.Y.2d 313, 318; Cartee v. Saks Fifth Ave., 277 App. Div. 606, 609-610, affd. 303 N.Y. 832; Tirado v. Lubarsky, 49 Misc.2d 543, affd. 52 Misc.2d 527; Levin v. Eleto Realty Corp., 160 Misc. 141, revg. 157 Misc. 180; see, also, McLeod v. Grant County School Dist. No. 128, 42 Wn.2d 316; Saugerties Bank v. Delaware and Hudson Co., 236 N.Y. 425, 430; Luce v. Hartman, 6 N.Y.2d 786).
In this posture of the record, I concur in the result reached by this court.
STREIT and LUPIANO, JJ., concur in Per Curiam opinion; MARKOWITZ, J.P., concurs in memorandum.
Judgment reversed, etc.